A ten-foot wide private passageway runs from Beacon to Branch Streets in the Beacon Hill neighborhood of Boston. The parties properties lie on either side of the passageway. The defendants, owners of DeLucas Market on Charles Street, have parked various vehicles in the passageway. The plaintiffs object to this parking, because it can block access to the passageway from their fire door. The plaintiffs claim that the owners of the DeLucas Market have no right to park in the passageway under a 1947 agreement entered into and recorded by the predecessor owners of all the subject properties. The DeLucas owners disagree, arguing that (a) the 1947 agreement is a restriction that has expired and (b) they have established a prescriptive easement to park. After trial, I find that (a) while some portions of the 1947 agreement are restrictions that have expired, the provisions of the 1947 agreement limiting the use of the portion of the passageway that the DeLucas owners do not own in fee are easements that remain in full force and effect and (b) the DeLucas owners have not established the continuous use necessary to create a prescriptive easement. Judgment will enter reinforcing the terms and limits of the 1947 agreement and the parties respective rights in the passageway.
Procedural Background
Samuel D. Perry, Eugene H. Clapp, III, and William W. Park, as they are trustees of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts Trust for the Benefit of Kings Chapel, and 66 Beacon Street, LLC filed their Complaint on June 11, 2013, naming as defendants Virgil Aiello, DeLucas Market, Corp., Robert Aiello, and James S. Hughes and Stewart Grossman, as trustees of the Virgil J. Aiello 2011 Irrevocable Trust and as trustees of the Candace Jans Aiello 2011 QTIP Trust. In the complaint, the plaintiffs seek a judgment declaring that they own the fee in the passageway running from Beacon Street to Branch Street that lies between their and the defendants properties to the centerline, that they have the right to use the entire passageway, and that the defendants may not park in or place trash in the passageway, as well as an injunction enjoining the defendants from parking in or otherwise obstructing the passageway. The defendants filed their Answer on July 9, 2013. A case management conference was held on July 12, 2013. A pretrial conference was held on July 23, 2014. A view was taken on September 22, 2014. A trial was held September 22 and 23, 2014. The court heard testimony from Samuel D. Perry, Peter Keating, Katherine Huber, Dola Stemberg, Paula OKeeffe, John Bowman, Howard Neff, Jr., Russ Gaudreau, Gerald Caldwell, Thomas Clemens, Virgil Aiello, Carl Scovell, and Robert Aiello. Exhibits 1 through 71 were marked. Plaintiffs Motion to Use Deposition of an Infirm or Sick Witness was allowed, and the Deposition Transcript of Paul J. Souza was admitted.
On December 8, 2014, the parties filed Plaintiffs Post Trial Brief and Defendants Post- Trial Brief. The court heard closing arguments on December 18, 2014, and took the matter under advisement. This Decision follows.
Findings of Fact
Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Samuel D. Perry, Eugene H. Clapp, III, and William W. Park are trustees of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts Trust for the Benefit of Kings Chapel (the Kings Chapel Trustees). They own the property at 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts by a deed dated February 2, 1954 and recorded in the Suffolk Registry of Deeds (registry) at Book 6936, Page 447, and a deed dated February 23, 1956 and recorded in the registry at Book 7137, Page 419 (the Kings Chapel Property). Exhs. 1, 5, 6, 8, 9, 10.
2. Kings Chapel has been on Tremont Street in Boston since 1686. The church is governed by a body called the vestry. Kings Chapels real estate, including the Kings Chapel Property, is owned by the Kings Chapel Trustees under a trust created in 1907. Tr. I-42-44, 48- 49, 198-199.
3. The Kings Chapel Trustees use the Kings Chapel Property for a Parish House that houses church offices, a parish hall, a Sunday school, and other uses, and for a parsonage, which is the ministers residence. 64 Beacon Street, abutting the Passageway (see below), was originally used as the parsonage and 63 Beacon Street as the Parish House; in 1968 or 1969, the uses were flipped so that 64 Beacon Street became the Parish House. Exh. 1; View; Tr. I-42-47.
4. 66 Beacon Street, LLC (the LLC) owns the property at 65-66 Beacon Street, Boston, Massachusetts, by a deed dated June 28, 2011 and recorded in the registry at Book 48088, Page 257 (the LLC Property). Exhs. 1, 11; Tr. II-30.
5. Virgil Aiello, Robert Aiello, and James S. Hughes and Stewart Grossman, as trustees of the Virgil J. Aiello 2011 Irrevocable Trust and as trustees of the Candace Jans Aiello 2011 QTIP Trust (the DeLucas Trustees) own the property at 7-17 Charles Street, Boston, Massachusetts, by a deed dated June 15, 2011 and recorded in the registry at Book 48053, Page 139 (the DeLucas Property). Virgil and Robert Aiello purchased the DeLucas Property from their uncle, Joseph DeLuca, in the late 1990s or early 2000s. Exhs. 1, 12, 13 14; Tr. II-206.
6. The Kings Chapel Property lies between Beacon and Branch Streets in the Beacon Hill neighborhood of Boston. The Kings Chapel Property bounds to its south on a 10- foot wide, 150.66 foot-long passageway that runs the entire length from Beacon to Branch Streets (Passageway). The LLC Property lies at the corner of Beacon and Charles Streets, and bounds on the Passageway to its north. The DeLucas Property lies on Charles Street. It bounds the LLC Property to its east and runs to Branch Street. It bounds the Passageway to its north. A plan showing the three properties and the Passageway is attached as Exhibit A. Exhs. 1, 7, 17; View.
7. Virgil Aiello owns DeLucas Market, Corp. (DeLucas), the current tenant of the DeLucas Property. DeLucas operates DeLucas Market, a grocery and wine store, at the DeLucas Property. Mr. Aiellos uncle, Joseph DeLuca, sold DeLucas Market to Mr. Aiellos father in 1952. DeLucas Market has operated at the DeLucas Property in some form since before 1920; a market has been on the site since 1900. Exhs. 1, 15; Tr. II-106-107, 130-131.
8. In 1947, the Kings Chapel, LLC, and DeLucas Properties were owned by various different members of the Briggs family, either individually or as trustees. On September 15, 1947, these owners executed an agreement with respect to rights in the Passageway, which was recorded in the registry at Book 6366, Page 534 (the 1947 Agreement). The 1947 Agreement provides, in relevant part, (a) that [t]here shall be appurtenant to the Kings Chapel and LLC Properties the right to use the entire Passageway for all purposes for which streets or ways are from time to time commonly used in Boston, (b) that [t]here shall be appurtenant to the DeLucas Property the right to use the Passageway for travel on foot and with hand carts between [the DeLucas Property] and Branch Street expressly excluding the right to place garbage or rubbish receptacles therein or to use said [P]assageway for any purposes other than those stated in this paragraph, (c) that the foregoing rights shall be exercised by each owner in common with the others and in a manner calculated to cause as little interference with the rights of the others as may be reasonably possible, (d) that the portion of the DeLucas Property at
7 Charles Street shall be subject to the restriction for the benefit of the Kings Chapel and LLC Properties that no structure higher than 50 feet may be erected so long as the Briggs family owns the properties or that no structure may be built that is higher than the existing building, (e) the DeLucas Property is subject to the restriction for the benefit of [the Kings Chapel and LLC Properties] that no garbage or rubbish shall be placed in said [P]assageway, and that no use shall be made of said [P]assageway other than to pass and repass thereover to and from [the DeLucas Property] on foot and with hand carts, and (f) that [n]o rights, other than those hereby established, shall be appurtenant to the DeLucas Property. Exh. 2.
9. By a deed dated September 29, 1947 and recorded in the registry at Book 6370, page 81, Lloyd Cabot Briggs and Caleb W. Warner as trustees of the Mary Cabot Briggs Trust conveyed the DeLucas Property to Joseph S. DeLuca and Lillian Z. DeLuca. This deed provides that the DeLucas Property is conveyed subject to the provisions of the 1947 Agreement.
Exh. 3.
10. Virgil Aiello has worked at DeLucas Market since 1952, since he was 11 years old. He worked for his father, and then took over the business with his brothers Robert and Gerald. Tr. II-106-108.
11. Between 1983 and 1993, Virgil Aiello owned a Dodge Caravan minivan that he used for transporting materials between the various DeLucas stores that he and his brothers owned, including the one on Charles Street. Generally, he parked on Charles Street or Branch Street. From time to time, he parked this minivan in the Passageway, when he could not find parking on the street. He continued this pattern through the 1990s with a new minivan. Tr. II- 110-112, 120-121, 140-141, 156: Exh. 30.
12. During the 1980s and forward, DeLucas had tradespeople park in the Passageway from time to time. Tr. II-113-114, 195-196.
13. Between the 1980s and March 2003, when he left DeLucas, Mr. Robert Aiello also parked in the Passageway only as a last resort when he could not find parking on the street. Tr. II-121, 191-192, 196, 201-202, 205.
14. Paul Souza worked for DeLucas Market on Newbury Street from 1977 to 1978, as the produce manager, working primarily on weekends. He left in 1978, but returned to work at the Market in 1984, where he acted as general manager. He left the Market in 2004. Souza Deposition Transcript (Souza Dep.) 9-11, 13-14, 17-20, 63-65.
15. At least from 1984 to 2003, Mr. Souza was at DeLucas Market seven days a week. Five to six days a week between 7:00 and 8:00 am, he took the trash out of the Market into the Passageway. During that time, he did not observe anyone park in the Passageway, except for repair trucks from time to time and, once or twice, a car belonging to Robert Aiello. He did not observe any vehicles associated with the LLC Property parking in the Passageway, either. DeLucas Market generally parked its delivery truck on Branch Street at the entrance to the Passageway. The gate to the Passageway at the Branch Street end was kept locked with a padlock; the key was kept in the Market just inside the door opening on the Passageway. Souza Dep. 21-22, 25, 29-37, 44, 50-51, 58-60, 67-68, 77-78, 82; Tr. II-133, 207-208.
16. Gerald Caldwell is a plumbing contractor. He performed plumbing work at the DeLucas Property between 1985 and 2010. He estimates that he visited the DeLucas Property approximately 20 times a year, and parked his van in the Passageway five to six times a year, on days that he expected to be at the Property all day. He never left his van in the Passageway overnight. Tr. II-69-72, 74, 79, 81.
17. When he parked his van in the Passageway, he backed in from Branch Street. Around half the times he parked his van in the Passageway, he observed a car in the Passageway as well. The car belonged to someone at DeLucas Market. He also observed a truck belonging to Jerry Bedard, a carpenter who did work at DeLucas Market, parked in the Passageway a couple of times a year. Tr. II-70-71, 74-76, 79-81; Exh. 30.
18. Samuel Perry has held various positions with Kings Chapel since 1967. He served on the Buildings and Grounds Committee and was Assistant Treasurer and a trustee of the Kings Chapel Trust. Between 1967 and the present, he has visited the Kings Chapel Property several times a week and observed the Passageway, both while at the Property and traveling between the Property and other locations. Tr. I-40-41, 50, 119-120.
19. John Bowman is the chair of the Buildings and Grounds Committee of Kings Chapel. He was chair of the committee between 1996 and 2000, and assumed that position again in 2010. He began attending Kings Chapel in 1990 and became a member in 1994. He taught in the Sunday School at the Parish House for eleven years beginning in 1991, and has been a member of the vestry. He continued to attend functions and events at the Parish House when he did not hold a position with Kings Chapel. Tr. I-197-198, 200-202, II-17-18.
20. Between 1967 and 2002, Mr. Perry did not observe any vehicles parked in the Passageway. The gates to the Passageway at Beacon Street and at Branch Street were kept locked, although by the late 1990s the lock at the Branch Street entrance could be opened without a key. Tr. I-51, 53-55, 74-75, 119-120, II-112-113, 207-209.
21. Between 1991 and 2000, Mr. Bowman did not observe any vehicles parked in the Passageway. Tr. I-204, II-19.
22. Carl Scovell was the minister of Kings Chapel from 1967 to 1999. During that time, he resided with his family at the parsonage at 63 Beacon Street. Beginning in 1970, he parked his vehicle in the outdoor parking area behind the Parish House at 64 Beacon Street. During this time, he regularly observed the Passageway when he entered and exited the parking area in his car. Tr. II-177-179, 185-187; Exh. 47.
23. During that period, Reverend Scovell only observed a vehicle in the Passageway less than once a month, though more than twice a year. Once or twice a week, the DeLucas van would park on Branch Street in front of the parking area and prevent him from entering or exiting the parking area. The frequency of the blocking lessened in later years. He also observed that the Branch Street gates to the Passageway were not often open. Tr. II-180-182, 184, 188.
24. Katherine Huber lived at 70 Chestnut Street in Beacon Hill between 1975 and 1988. Her house backed up on Branch Street just opposite the entrance to the Passageway, and she entered and exited her property with her car from that location. There was also a door to their house on the Branch Street side. During this time, she observed the Passageway at least twice a day when she carpooled her daughter to and from school. Tr. I-167-169, 172-174; Exh. 48.
25. During that period, she never observed a vehicle parked in the Passageway. Most often, the gates to the Passageway at Branch Street were closed. A vehicle belonging to DeLucas Market was consistently parked on Branch Street in front of the gates; when that happened, Ms. Huber would be unable to fully exit her property with her car, and would go into the DeLucas Market to ask someone to move the vehicle. The vehicle was never parked in the Passageway. Tr. I-169-172; Exh. 17.
26. Dola Stemberg lived at 70 Chestnut Street in Beacon Hill, the same house that Ms. Huber lived in, from January 1990 to August 1995. She took her car out onto Branch Street and used the door from the house to Branch Street almost daily in that time period. She never saw a vehicle parked in the Passageway during that time. From time to time, a black Mercedes was parked on Branch Street at the gates and at the garage door to the Parish House parking area, which interfered with her ability to back her car out of her property. Tr. I-175-178, 181-182.
27. Paula OKeeffe lived at 74 Chestnut Street in Beacon Hill from 1968 until 2012. The garage and rear of her property backed onto Branch Street just south of the entrance to the Passageway. Ms. OKeeffe observed cars and trucks parked in the Passageway beginning sometime between 2004 and 2006, when DeLucas Market began an excavation inside the DeLucas Property and placed a dumpster on Branch Street. She recalls observing the green panel truck belonging to DeLucas Market and Virgil Aiellos car being parked in the Passageway in that time. Tr. I-184-191, 193-194; Exhs. 25, 30.
28. Peter Keatings father owned the LLC Property, and Mr. Keating worked with his father from 1981 until his fathers death in 1996. At that point, Mr. Keating controlled the LCC Property until he sold it to the LLC in June 2011. Mr. Keatings and his fathers company maintained an office at the LLC Property. Other tenants included a Starbucks Coffee, Cambridge Trust Company, an investment firm, and 15 residential apartments, Tr. I-139-143, 151-152, II-30.
29. Mr. Keating never parked in the Passageway. The Passageway was used to take trash from the LLC Property to Branch Street where it would be picked up, or for repair persons or trades persons to enter the LLC Property from the rear. Tr. I-141-142, 144-145.
30. Between 1980 and 2011, Mr. Keating recalls trucks or other vehicles parked in the Passageway only intermittently, and never saw multiple trucks stacked in the Passageway. Tr. I-148-149, 157, 165; Exh. 29.
31. In 2002, DeLucas purchased a box truck. The box truck was parked primarily on Branch Street, but it has been parked in the Passageway from time to time. Tr. II-122-123, 151- 153, 159-160; Exhs. 26, 27, 61.
32. In 2002, Kings Chapel completed some renovations to the Parish House. It created a staircase in the rear ell-shaped portion of the Parish House and a fire egress to the Passageway. A previously-exiting door is now a fire door leading from the Parish House to the Passageway, at a point approximately halfway between Beacon and Branch Streets. At the completion of these renovations, the gates at Branch Street were unlocked. Tr. I-54-55, 60-65, 205-206; Exhs. 24, 32; View.
33. Beginning in 2002 after the completion of the renovations, Mr. Perry observed trucks and cars associated with DeLucas Market parked in the Passageway, including a car belonging to Virgil Aiello. Mr. Bowman observed the same trucks and cars in the same period. Mr. Perry telephoned Mr. Aiello to ask him to remove the vehicles from the Passageway, and in 2003 Kings Chapel sent a written notice to Mr. Aiello, asking him not to park vehicles in the Passageway. Tr. I-55-56, 72-73, 81-82, 91, 106-107, 115, 202; Exhs. 34, 59.
34. Around 2008, DeLucas placed a pile of steel I-beams in the Passageway. Those steel I-beams were observed in the Passageway by Mr. Bowman as recently as early September 2014. Tr. I-63-64, 199-200, 202, II-125-126, 143-145; Exh. 31.
35. When a truck is parked in the Passageway, it is very difficult, if not impossible, to pass by the truck on either side. On several occasions since 2002, trucks have parked opposite the fire door from the Parish House; when that happens, the fire door cannot be opened. Trucks in the Passageway have, at least on one occasion, knocked down a conduit leading to an outside thermostat on the Parish House. Tr. I-64-67, 70-71, 200; Exhs. 32, 33, 38, 39, 40, 50, 51; View.
36. During this period, except on one occasion, employees of Kings Chapel did not park in the Passageway. There is an outdoor parking area enclosed by a wall and garage doors at the rear of the Parish House that is used by the residents of the Parsonage. From time to time, vehicles belonging to repair persons would park in the Passageway to load and unload materials and supplies, and in the summer of 2014, a painter and repair person working on the fifth floor of the Parish House parked his vehicle and put up a ladder in the Passageway. Tr. I-72-73, 77, 82- 83, 88, 91, 111-114, 116-117, 134-135, II-18, 26, 159, 163-164, 199-200; Exhs. 47, 57, 60, 61, 62, 62A; View.
37. In July 2010, there was a fire at DeLucas Market. After the fire, DeLucas Market undertook a series of repairs and restoration, and their workers trucks often parked in the Passageway. Tr. I-66, 68-69, 112-113, 162, II-31-32, 123-125, 157; Exhs. 33, 39.
38. Sometime between 1998 and 2010, the previous owner of the LLC Property and Kings Chapel gave the bank manager at the Cambridge Trust Bank located at the LLC Property permission to park one or two cars in the Passageway at the Beacon Street end. This parking ended sometime in 2011 after Kings Chapel objected. Tr. I-71-72, 80-82, 140-141, 150-151, 153, 164-165, 207-208, II-10-12, 32-33, 199.
39. Based on the testimony of the witnesses and my assessment of their credibility, the exhibits, and the view, I find that before 2001, Virgil and Robert Aiello and their employees and service people parked in the Passageway only intermittently (that is, only once or twice a month), when parking was not available on Charles or Branch Streets.
40. DeLucas disposed of its trash by placing it in a dumpster that would be moved from the Passageway to Branch Street where it would be picked up. Between 1967 and the present, trash and debris from DeLucas Market would periodically build up in the Passageway until the owners of the Kings Chapel Property or the LLC Property would speak to Virgil or Robert Aiello, or another person at DeLucas Market, and ask them to clean it up. Tr. I-57-58, 93, 146-147, 149-150, 154-156, 158-162, 178-181, 192, II-31-32, 115-119, 179-180, 197; Exhs. 19, 20, 22, 23.
41. On February 13, 2013, Robert Aiello, Virgil Aiello, and DeLucas executed a so- called Good Neighbor Agreement with the Beacon Hill Civic Association, Inc. Paragraph 14 of Exhibit A of the Good Neighbor Agreement states: The Market Owner and the Property Owner will comply with all legally binding requirements of the recorded agreement (Suffolk Registry Book 6366, Page 534) among the passageway owners governing the use of the passageway. Exhs. 1, 16.
42. Representatives of the Kings Chapel Trustees communicated their concern about DeLucas Markets use of the Passageway with the Beacon Hill Civic Association. Their discussions resulted in paragraph 14 being added to Exhibit A of the Good Neighbor Agreement. Tr. I-121-124, 130-131, 209-212, II-6-9, 15-17, 21-24, 41, 43-46; Exhs. 69, 70, 71.
43. As a result of the Good Neighbor Agreement, DeLucas no longer places trash in the Passageway. It loads trash onto a truck in the Passageway and trucks the trash to another location. Tr. II-171-172.
Discussion and Conclusions of Law
There are two legal issues in this case. The first is what rights of record the parties have to use the Passageway under the 1947 Agreement. The second is whether the DeLucas Trustees have expanded or modified their right to use the Passageway by prescriptive use to include the right to park in the Passageway or place trash and other materials in the Passageway. I discuss each issue in turn.
Rights of record in the Passageway. Before the 1947 Agreement was entered, the rights of the owners of the Kings Chapel, LLC, and DeLucas Properties in the Passageway were governed by the common law and the Derelict Fee Statute, G.L. c. 183, § 58. Each of the properties owned in fee simple the portion of the Passageway bounding on the property, to the centerline of the Passageway. Id. Each property also had the right to use the Passageway for its entire length between Beacon and Branch Streets. See, e.g., Hickey v. Pathways Assn, Inc., 472 Mass. 735 , 754 (2015); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-644 (2004). In the 1947 Agreement, the owners of the respective properties agreed to modify these common-law rights. The parties retained each of their fee interests in the half of the Passageway opposite their properties. They modified their rights to use the rest of the Passageway by agreeing to new easements, surrendering other easement rights, and placing restrictions on their use of the portion of the Passageway that they owned in fee simple.
The Kings Chapel Trustees and the LLC, on the one hand, and the DeLucas Trustees, on the other, disagree about what provisions of the 1947 Agreement constituted easements and which constituted restrictions. The distinction is important. An easement is an interest in land which grants to one person the right to use or enjoy land owned by another. Commercial Wharf E. Condominium Assn v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990); World Species ListNatural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009). An easement grants an affirmative right, for the benefit of one parcel, to use the land of another. Id. at 305-306. A restriction, on the other hand, is a right to compel the person entitled to the possession of the land not to use it in specified ways. Patterson v. Paul, 448 Mass. 658 , 662 (2007), quoting Labounty v. Vickers, 352 Mass. 337 , 347 (1967). While a restriction gives the benefited parcel or person the power to prevent the burdened parcel from being used in a way contrary to the restriction, it grants no affirmative right to use the burdened parcel. Labounty, 352 Mass. at 347-348; World Species ListNatural Features Registry Inst., 75 Mass. App. Ct. at 305-306. Unlike easements, restrictions are limited in time; by statute, any restrictions in the 1947 Agreement expired fifty years after the date of the Agreement, or on September 14, 1997. G.L. c. 184, § 28.
The 1947 Agreement contains nine numbered provisions to which the parties covenant and agree. The provisions at issue in this case are as follows. Provision (1) grants as appurtenant to the Kings Chapel and LLC Properties the right to use the entire [Passageway] extending from Beacon Street to Branch Street . . . for all purposes for which streets or ways are from time to time commonly used in Boston. Exh. 2. Provision (2) grants as appurtenant to the DeLucas Property the right to use [the Passageway] for travel on foot and with hand carts between [the DeLucas Property] and Branch Street expressly excluding the right to place garbage or rubbish receptacles therein or to use [the Passageway] for any purposes other than those stated in this paragraph. Id. Provision 3 provides that the foregoing rights shall be exercised by each owner in common with the others and in a manner calculated to cause as little interference with the rights of the others as may be reasonably possible. Id. Provision (7) provides that the DeLucas Property shall be subject to the restriction for the benefit of [the Kings Chapel and LLC Properties] that no garbage or rubbish shall be placed in [the Passageway], and that no use shall be made of [the Passageway] other than to pass and repass thereover to and from [the DeLucas Property], on Charles Street and Branch Street on foot and with hand carts. Id. Finally, provision (9) states, in relevant part, that [n]o rights, other than those hereby established, shall be appurtenant hereafter to the DeLucas Property. Id.
Read together, these provisions of the 1947 Agreement demonstrate an intent of the owners of the Kings Chapel, LLC, and DeLucas Properties to surrender their common-law easement rights to use the Passageway and restate those easement rights in the Agreement. Provisions (1) and (2) of the 1947 Agreement are restated easements. They explicitly burden one property with rights to use that property that are appurtenant to the other property or properties. Provision (1) grants as appurtenant to the Kings Chapel and LLC Properties an easement to use the Passageway for all purposes for which ways and streets are used in Boston. Provision (2) grants as appurtenant to the DeLucas Property a more limited easement: the right to use the Passageway only for travel on foot and with hand carts between the DeLucas Property and Branch Street. This easement expressly excludes any right to place rubbish or trash in the Passageway. The parties intent to surrender their common-law easement rights in favor of only the easements in the 1947 Agreement is further evidenced by the statement in provision (2) that the DeLucas Property has no other appurtenant rights to use the Passageway for any purposes other than those stated in this paragraph and the statement in provision (9) that no other rights than those stated in the 1947 Agreement are appurtenant to the DeLucas Property. Id.
The easements of the 1947 Agreement only concern the owners rights to use the half of the Passageway that they do not own in fee simple. For the half of the Passageway that they do own in fee simple, they retain the right to use that half as any owner could, so long as they do not interfere with the other owners use of the easement for the benefit of the other properties to which their half is subject. This right to use the portion of the Passageway owned in fee simple could only be limited by a restriction. The only relevant restriction in the 1947 Agreement is provision (7), which restricts the DeLucas Propertys use of the half of the Passageway that it owns to the same uses set down in its easement to use the other half of the Passageway. The combination of the easement in provision (2) and the restriction in provision (7) meant that the DeLuca Property could only use the Passageway for passage by foot and hand carts between that property and Branch Street, and could not place rubbish or trash in the Passageway.
There is no evidence that the restriction of provision (7), or any of the other restrictions in the 1947 Agreement not discussed here, were extended. Therefore, as discussed above, the restriction of paragraph (7) expired fifty years after the date of the 1947 Agreement, or on September 14, 1997. G.L. c. 184, § 28. As of that date, the owners of the subject properties had the following rights. The Kings Chapel Trustees, the LLC, and the DeLucas Trustees each own in fee the portion of the Passageway abutting their properties, to the centerline of the Passageway. They have the right to use that portion of the Passageway for any lawful purpose, so long as they do not interfere with any other owners exercise of its easement rights. The Kings Chapel Trustees and the LLC have an easement over the portion of the Passageway that they do not own in fee, appurtenant to the Kings Chapel and LLC Properties, to use the Passageway for all purposes for which ways and streets are used in Boston. The DeLucas Trustees have an easement over the portion of the Passageway that they do not own in fee, appurtenant to the DeLucas Properties, to use the Passageway between the DeLucas Property and Branch Street only for travel on foot and with hand carts. They cannot use the portion of the Passageway that they do not own for any other purpose, including but not limited to the placing of trash and rubbish, parking, or vehicular travel.
One of the results of this web of easement and title rights is that none of the owners has an easement or fee simple right to park in the Passageway. As confirmed by the photographic evidence and my view, the Passageway is so narrowonly ten feet widethat any vehicle parked in the Passageway would interfere with the rights of passage of the Kings Chapel Trustees, the LLC, and the DeLucas Trustees under their various easements and their fee interests. Parking in a way is not permitted where it would interfere with the right of others to pass and repass over the way. Delconte v. Salloum, 336 Mass. 184 , 190 (1957). On the other hand, the DeLucas Trustees do have the right to drive a trash truck into the Passageway once a day for the purpose of loading onto it the trash from DeLucas Market, as provided for in the Good Neighbor Agreement. That once-a-day access does not interfere with the easement rights of the Kings Chapel Trustees and the LLC.
Prescriptive easement. While the DeLucas Trustees have no record easement to park or place trash or other materials in the portion of the Passageway that they do not own, they argue that they have established a prescriptive easement to do so. To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than twenty years. G.L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Long v. Woods, 22 LCR 416 , 420 (2014). Whether the elements of a claim for a prescriptive easement have been satisfied is a factual question, and the party who claims a prescriptive easementhere, the DeLucas Trusteesbears the burden on every element. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). These elements are discussed in turn.
The purpose of the requirement of open and notorious use is to ensure that the true owner has notice of a claim of right being made over his property and to give the true owner a fair chance to protect her property interests. Foot v. Bauman, 333 Mass. 214 , 218 (1955); see Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). For a use to be open there cannot be an attempt to conceal the use. White v. Hartigan, 464 Mass. 400 , 416 (2013); Boothroyd, 68 Mass. App. Ct. at 44. For a use to be notorious, the use must be sufficiently pronounced so a landowner who exercises a reasonable degree of supervision over the property will either directly or indirectly be made aware of the use. Id.; see White, 464 Mass. at 417. It is not necessary that the use be actually known to the owner for the use to be notorious. Boothroyd, 68 Mass. App. Ct. at 44. The use must, however, be of such a character that the true owner is put on constructive notice of the use. Lawrence, 439 Mass. at 421 (noting there is no requirement that the true owner be given explicit notice of adverse use); Boothroyd, 68 Mass. App. Ct. at 44. When the true owner has actual knowledge of a use being made under a claim of right, the open and notorious element will be satisfied. White, 464 Mass. at 417.
To be adverse the use be made under a claim of right and the true owner must not have given permission for or consented to the use. White, 464 Mass. at 418; Houghton, 71 Mass. App. Ct. at 835; Johnson v. Falmouth Planning Bd., 19 LCR 104 , 110 (2011), affd sub nom Johnson v. Santos, 81 Mass. App. Ct. 1125 (2012). Permission is not the same as acquiescence. Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). Permission gives an individual the right to do some act on the land. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). Permission is revocable and will defeat a claim for a prescriptive easement.
Houghton, 71 Mass. App. Ct. at 835. Whether permission has been granted or can be implied will depend on the particular circumstances of the case, including, among other relevant factors, the actions of the owner, the character of the land, the use of the land, and the nature of the relationship between the parties. Totman v. Malloy, 431 Mass. 143 , 145-146 (2000); Kendall v. Selvaggio, 413 Mass. 619 , 624-626 (1992); Houghton, 71 Mass. App. Ct. at 842-843. An unexplained use of an easement for twenty years creates a presumption of adversity. Truc v. Field, 269 Mass. 524 , 528-529 (1930); Houghton, 71 Mass. App. Ct. at 836, quoting Ivons- Nispel, Inc., 347 Mass. at 763. The true owner can overcome the presumption by offering evidence that explains the use or shows control over the use. Id. For example, the true owner can defeat the presumption by showing there was express or implied permission or the use was the result of some license, indulgence, or special contract. White v. Chapin, 94 Mass. 516 , 519-520 (1866).
The adverse, open and notorious use of the land must have been continuous for no less than twenty years. G.L. c. 187 § 2; Ryan, 348 Mass. at 263. Circumstantial evidence may be used to establish a continuous use. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870); Long, 22 LCR at 420; Bagley v. Senn, 19 LCR 6 , 12 (2011). Continuous use does not mean constant use; a claimant need not show there was daily, constant or un-interrupted use over the entire twenty-year period. Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961); Bodfish, 105 Mass. at 319; Bagley, 19 LCR at 12. Intermittent or occasional use, however, is not continuous, Boothroyd, 68 Mass. App. Ct. at 45, and sporadic use will not be found to be continuous unless the acts are sufficiently pervasive. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996); Lally v. Murphy, 21 LCR 315 , 318 (2013). Regular seasonal or periodic use may be considered continuous if there is a pattern of regularity or some degree of consistency in the use. Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) (seasonal absence does not prevent a finding of continuous use); Kershaw, 342 Mass. at 320-321 (finding continuous use in an adverse possession case where a circus performer had marked a boundary, cleared brush, and periodically used the property for exercises and stunts); Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (noting pattern of regular use on weekends).
A claimant who has not made continuous use of the property for twenty years may satisfy the statutory period by tacking on "several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses." Ryan, 348 Mass. at 264; Denardo v. Stanton, 16 LCR 141 , 144 (2008), affd, 74 Mass. App. Ct. 358 (2009). Privity exists when use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor of the earlier one. Ryan, 348 Mass. at 264.
Based on my findings of fact above, I conclude that before 2001, the parking in the Passageway, while open, notorious, and adverse, was not sufficiently pervasive or regular to be continuous. Parking in the Passageway one or two times a month is not regular; rather, it is intermittent and sporadic. It is not the kind of use that would put the owner of the alleged servient estate on notice sufficient to oblige them to take action before the twenty-year period ran.
After 2001, the DeLucas Trustees and their predecessors use of the Passageway for parking increased. Without assessing whether that post-2001 use was sufficiently pervasive, it did not last the twenty years required to establish a prescriptive easement.
The DeLucas Trustees have also failed to establish any prescriptive right to store trash or any other materials in the Passageway. The owners of the DeLucas Property may have let trash build up in the Passageway, but they never stored trash there adversely. They acknowledged their obligation not to store trash in the Passageway and removed it when the owners of the Kings Chapel and LLC Properties requested. The steel beams and other objects placed in the Passageway have not been there for more than twenty years.
Conclusion
Judgment shall enter (a) declaring that the Kings Chapel Trustees, the LLC, and the DeLucas Trustees own the fee in the Passageway abutting their respective properties to the centerline, (b) declaring that the Kings Chapel Trustees and the LLC have an easement to use the portion of the Passageway that they do not own for its entire length for all purposes for which ways and streets are used in Boston, (c) declaring that the DeLucas Trustees have an easement to use the portion of the Passageway that they do not own for passage on foot and by hand trucks only to Branch Street, and not for any other purpose, including but not limited to the placing of trash and rubbish, parking, or vehicular travel, (d) declaring that no party has the right to park on the portion of the Passageway that it does not own, and (e) enjoining the DeLucas Trustees from parking on the portion of the Passageway that they do not own, placing trash, debris or other materials on that portion, or otherwise interfering with the easement rights of Kings Chapel Trustees or the LLC, except that the DeLucas Trustees may drive a truck into the Passageway once a day for the sole purpose of loading onto it trash from DeLucas Market.
Judgment accordingly.
SAMUEL D. PERRY, EUGENE H. CLAPP, III, and WILLIAM W. PARK, as they are trustees of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts, Trusts for the Benefit of King's Chapel, and 66 BEACON STREET, LLC. v. VIRGIL AIELLO, DeLUCA'S MARKET, CORP., ROBERT AIELLO, and JAMES S. HUGHES and STEWART GROSSMAN, as trustees of the Virgil J. Aiello 2011 Irrevocable Trust and as trustees of the Candace Jans Aiello 2011 QTIP Trust.
